Before Terry, Steadman, and Schwelb, Associate Judges.
The opinion of the court was delivered by: Schwelb, Associate Judge
Appeal from the Superior Court of the District of Columbia (Hon. Mildred M. Edwards, Motions Judge) (Hon. Herbert B. Dixon, Jr., Trial Judge)
On or about February 28, 1997, Tony Christopher Thomas entered a conditional plea of guilty to the offense of second-degree murder while armed. Under the plea agreement, Thomas reserved the right, pursuant to Super. Ct. Crim. R. 11 (a)(2), to appeal from the motions Judge's denial of his pretrial motion to suppress statements.
On appeal, Thomas contends that, while he was in custody, the police contravened the strictures of Miranda v. Arizona, 384 U.S. 436 (1966),
1. by interrogating him regarding his true name without first advising him of his Miranda rights; and
2. by continuing to interrogate him, following advice of rights, after he had refused to answer questions without an attorney present.
We reverse in part, affirm in part, and remand for further proceedings.
On or about September 15, 1995, Thomas and his friend, James Lee Bowser, observed Gerald Harris on the street wearing jeans and boots allegedly belonging to Thomas. Thomas later discovered that the screen door to his apartment had been cut out and that some of his property was missing. Thomas confronted Harris, who appeared not to take Thomas' complaint seriously. Enraged, Thomas obtained a handgun from one of his friends, approached Harris, and shot him. Harris fell to the ground, shouting "Tony, why me? What did I do?" Thomas fired five additional shots into his prostrate victim. Harris died of his wounds. The murder was committed in broad daylight, and it was apparently witnessed by several individuals who reported what they saw to the police.
On October 16, 1995, Detective Dwayne Corbett of the Metropolitan Police Department (MPD) was investigating Harris' murder. Having received a lead that a man named Tony may have been involved, *fn2 as well as a description of the suspect, Corbett and a colleague set up surveillance in Suitland, Maryland. A man who apparently matched the suspect's description emerged from an apartment complex and sat down in the passenger seat of a Ford automobile that was parked outside. The person behind the wheel drove off, and the detectives followed the Ford until it came to a stop in the block in southeast Washington, D.C. where Harris had been murdered. Detective Corbett then observed the passenger toss a small marijuana cigarette out of the open car window. Perhaps sensing that this fortuitous occurrence might facilitate his ongoing investigation, Detective Corbett called for assistance over the radio, and he and his colleague ordered the passenger to step out of the car. Corbett also detected a strong odor of marijuana, and he placed the man who had discarded the "reefer" under arrest. Officers recovered additional marijuana from the vehicle and from the suspect's person.
One of the officers asked the suspect his name. The man responded that he was David Phifer, and he produced identification corroborating this claim. Pressing the inquiry, Corbett asked the man whether his name was Tony. The suspect stated that it was not.
The arrested man was transported to the Homicide Division of the MPD, where he was placed in an interview room and handcuffed. Detective Corbett again asked him to identify himself. The suspect reiterated that his name was David Phifer. Corbett asked the man to recite from memory information appearing on the Phifer identification. Remarkably, the suspect was able to do so. Corbett attempted to verify, through the WALES computer, the information provided by the suspect, but the name "David Phifer" did not "come up." The detective concluded that the arrested man had falsified his identity.
Corbett advised his prisoner of the results of the WALES check, and he told him that he knew his name was not David Phifer. The suspect now responded by claiming that his name was really James Lee Bowser. *fn3 He provided the detective with a purported address and date of birth for Bowser. After checking this information in the WALES computer, Corbett discovered that it too was false, and he so advised his prisoner.
The suspect next asserted that his name was Stanley Wallace. Once again, Detective Corbett attempted unsuccessfully to verify the new claimed identity. Meanwhile, Sergeant Lyons, Corbett's supervisor in the Homicide Division, was also trying to learn the prisoner's true name. At one point, Sergeant Lyons came into the interview room and said, "I know this guy. This is Tony. What's his last name?" Phifer alias Bowser alias Wallace did not respond to this apparent ruse. Finally, however, after approximately two hours of lying to the police, the prisoner admitted that his name was Tony Thomas.
Upon ascertaining that the fourth name provided by his evasive captive was the correct one, *fn4 Detective Corbett told Thomas that he was a suspect in the murder of Gerald Harris. Thomas asked Corbett why Corbett believed that Thomas was involved in that offense. Corbett explained that he could not discuss the matter with Thomas until after Thomas had been advised of his Miranda rights. Corbett then read Thomas his rights from a police PD-47 advice of rights form.
The questions on the PD-47 are: "(1) Have you read or had read to you the warning as to your rights? (2) Do you understand these rights? (3) Do you wish to answer any questions? (4) Are you willing to answer questions without having an attorney present?" After his rights had been read to him, Thomas answered yes to the first three questions, but he wrote "no" in response to the fourth.
Precisely what happened next is in dispute, for Detective Corbett and Mr. Thomas provided slightly different accounts at the hearing on Thomas' motion to suppress. The motions Judge, after hearing the testimony of both witnesses, found, inter alia, that
"the defendant unambiguously responded "no" to the fourth question, that is, whether he was willing to answer questions without an attorney present.
The court further finds, as demonstrated by Detective Corbett's preliminary hearing testimony, his testimony at this proceeding, the defendant's testimony at this proceeding, and the videotape, that the next thing that occurred was that Detective Corbett said that they could not continue to talk about the case because the defendant had written "no" in response to the fourth question.
The court also finds that the defendant then stated that he wanted to talk about it, he wanted to tell the police what happened, he had to tell the police what happened.
He agreed to mark out the "no." And it appears from the PD-47 that he simply wrote "yes" over the "no" and, at Detective Corbett's request, he initialed the "yes."
After Thomas changed his answer to the fourth question on the PD-47 form from "no" to "yes," Detective Corbett interrogated him about the killing of Gerald Harris. Thomas initially claimed that it was Bowser, and not Thomas, whose apartment had been burglarized and who was principally responsible for Harris' death. Detective Corbett told Thomas that he did not believe this account, and he asked Thomas to submit to a voice-stress analysis "lie detector" test. Thomas agreed, and at the Conclusion of a one-hour voice-stress examination, Thomas was told that he had failed. Thomas then advised Detective Corbett that he "really" wanted to tell the police what happened, and he gave Corbett the account of the crime described on page , supra. Thomas also reiterated his final version in a detailed videotaped confession.
A grand jury indicted Thomas for first degree premeditated murder while armed and related weapons offenses. Thomas moved to suppress his statements on Miranda grounds. Following an evidentiary hearing, the motions Judge found no Miranda violation. Thomas then entered his conditional plea to second-degree murder while armed. The trial Judge ...